Congress can’t ‘fix’ net neutrality with a new bill. Here’s why.

As FCC Chairman Ajit Pai pushes toward his planned repeal of Net Neutrality rules on Dec. 14, we’ve seen a tremendous upswell of activism and organizing around what comes next in the fight for the open internet.

The path to victory for Net Neutrality supporters requires strong leadership from Capitol Hill — but it shouldn’t include a legislative “fix.”

{mosads}Some lawmakers have suggested that if the Trump FCC votes to gut Net Neutrality protections, Congress should step in and replace them with new legislation. That may sound like a good idea, but in the end it’s the same old game of “repeal and (don’t really) replace.”

Here’s why Congress shouldn’t legislate Net Neutrality.

First of all, we have a good law already. It’s called Title II of the Communications Act.

Despite the whining and lying of monopoly internet service providers like AT&T, Comcast and Verizon that are hell-bent on destroying Net Neutrality, Title II hasn’t actually harmed broadband investment.

What’s more, the Title II Net Neutrality rules have been upheld in court. And the existing law is immensely popular among Republican and Democratic voters, public advocates and businesses.

Passing a new bill with enough support from current Republican leadership would mean watering down the rules and undermining internet users’ rights.

Too many Republicans in Congress, like the ISPs lobbying them, don’t genuinely care about Net Neutrality. The most recent attempt at legislation, from Sen. John Thune (R-S.D.) and Rep. Greg Walden (R-Ore.), would have preserved only some of the existing rules — while leaving enormous loopholes enabling companies to discriminate against online content and violate Net Neutrality principles.

Even if a new bill closed those loopholes, Title II does more than simply protect Net Neutrality. The existing statute also gives the FCC unquestionable legal authority to modernize the Lifeline program subsidizing low-income families’ access to broadband — which Pai is already working to undermine.

Title II also gives the FCC authority to protect our privacy from broadband providers’ intrusions. (You might remember this fight from March, when Congress repealed the FCC’s strong privacy rules. We’re still waiting on that “replacement”.)

But what about a perfect bill that enshrined both Net Neutrality and all other relevant Title II protections? It would be dead on arrival in this Congress.

Although people of all political stripes outside the Beltway support Net Neutrality, inside D.C. this is a deeply partisan issue. Passing a good bill through this Congress, with this president while facing off against an army of ISP lobbyists and their mountains of campaign cash would be impossible.

New legislation would also fail to stop the political ping pong, litigation, and uncertainty that ISPs have spent so much energy stoking and bemoaning. The “ping pong” argument is a red herring, meant to disguise the fact that the ISPs themselves are the sole source of regulatory uncertainty.

The FCC correctly reclassified broadband as a Title II service in 2015; the courts agreed, and the rules work. Only the ISPs and Chairman Pai continue to object, without evidence. To end this supposed uncertainty, all the ISPs need to do is stop manufacturing it.

It’s ridiculous to suggest that passing a new law would end all political disputes or litigation battles over Net Neutrality. Legislation can be repealed, litigated or undermined by further regulatory action.

For an example, look no further than the 1996 Telecommunications Act itself, which passed Congress by huge margins and still provides the bedrock nondiscrimination laws we need. Yet more than 20 years later it’s still the subject of vigorous debate.

If by some stroke of luck Congress managed to pass a good bill preserving Title II authority, what’s to stop ISPs from moving their game of “ping pong” to Congress? Nothing at all.

We have a good law. We have nothing to gain from bargaining with Congress for a worse one. If the FCC votes to scrap Title II authority, Net Neutrality advocates will take the agency to court — where Chairman Pai’s substantive failures and procedural violations will be called into question.

This is exactly why ISPs are pushing so hard for legislation. Their strategy since the 2015 Open Internet Order has been to shred the existing rules so that Net Neutrality supporters get desperate enough to come to the bargaining table and compromise our own victory away.

Now is not the time to cut a bad deal. We can and should fight for Title II in court. Our champions in Congress need to stand strong with us, instead of sitting down with those who’ve threatened and coerced us.

Chairman Pai’s repeal is a tactical trap designed to force Congress to legislate weaker rules. Net Neutrality proponents in Congress shouldn’t fall for it. 

Dana Floberg is a policy analyst for Free Press and the Free Press Action Fund.